HomeMy WebLinkAboutVII (A1c) Telecommunications; Ordinance No. 2001-15, Providing for Telecommunications Service Rights-of-Way Agenda 6-05-2001
Item VII Ale
ORDINANCE NO. 2001-15
AN ORDINANCE OP THE CITY OF OCOEE, FLORIDA,
ADDING CITAPTER 162 TO CODE OF CITY OF OCOEE
ENTITLED "CITY OF OCOEE' TELECOMMUNICATIONS
ORDINANCE"; PROVIDING THE TERMS AND CONDITIONS
FOR TI IE ERECTING. CONSTRUCTING, AND
MAINTAINING OF A TELECOMMUNICATIONS FACILITY
IN THE CITY'S PUBLIC RIGHTS OF WAY FOR THE
PROVISION OF TELECOMMUNICATIONS SERVICE;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
CODIFICATION; PROVIDING AN EFFECTIVE DATE.
PROVIDING FOR CODIFICATION; PROVIDING FOR
CONFLICTS; PROVIDING FOR SAVINGS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is
amended because state law requires the nondiscriminatory treatment of providers of
telecommunications services and because of the desire to promote competition among providers
of telecommunications services, it is the intent of the legislature that municipalities and counties
treat telecommunications companies in a nondiscriminatory and competitively neutral manner
when imposing rules and regulations governing the placement or maintenance of
telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed
by a municipality or county relating to the use of the roads or rights-of-way must be generally
applicable to all telecommunications companies, and, notwithstanding any other law, may not
require a telecommunications company to apply for or enter into an individual license, franchise
or other similar agreement with the municipality or county as a condition of placing or
maintaining telecommunications facilities in its roads or rights-of-way; and
WHEREAS, effective October I, 2001, Section 337.401, Florida Statutes (2000), is
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further amended to state that because of the unique circumstances applicable to providers of
communications services and the fact that state law now requires the nondiscriminatory treatment
of providers of communications services, and because of the desire of the Florida Legislature to
promote competition among providers of communications services, it is the intent of the
Legislature that municipalities and counties treat providers of communications services in a
nondiscriminatory and competitively neutral manner when imposing rules or regulations
governing the placement and maintenance of communications facilities in the public roads or
rights-of-way. Rules and regulations imposed by a municipality or county relating to the use of
roads or rights-of-way must be generally applicable to all providers of communications services,
and, notwithstanding any other law, such rules or regulations may not require a provider of
communications services, to apply for or enter into an individual license, franchise or other
similar agreement with the municipality or county as a condition of placing or maintaining
communications facilities in its roads or rights-of-way;
WHEREAS, the City Commission of the City of Ocoee has determined it is in the public
interest of the City to permit the placement of one (I) or more Telecommunications Systems or
Facilities in the Public Rights-of-Way of the City; and
WHEREAS, it is the intent of the City Commission to encourage competition by
providing access to the Public Rights-of-Way to the City on a nondiscriminatory basis; and
WHEREAS, Section 364.0361, Florida Statutes, requires that a local government treat
Telecommunications Companies in a nondiscriminatory manner when exercising the authority to
manage the Public Rights-of-Way; and
WHEREAS, Section 337.29 (3), Florida Statutes, provides that a municipality shall have
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the same governmental, corporate, and propriety powers with relation to any public road or right-
of-way within the municipality which has been transferred to another governmental entity
pursuant to s. 335.0415, that the municipality has with relation to other public roads and rights-of
way within the municipality; and
WHEREAS, it is the intention of the City Commission to recognize the interests of
Telecommunications Service Providers to install their facilities in Public Rights-of-Way as a
means of promoting the use of such technology for the good of the people of the City; and
WHEREAS, it is the intent of the City Commission to exercise the City's authority over
the Telecommunications Service Providers' occupancy of the Public Rights-of-Way; and
WHEREAS, these policies arc in complete accord with both the letter and the spirit of
the Communications Act of 1934, as amended; and
WHEREAS, the enactment of the Telecommunications Act of 1996, amendments to
applicable statutes of the State of Florida and developments in telecommunications technology
and services have resulted in an increase in the number of persons certified by the Florida Public
Service Commission to provide Telecommunications Services; and
WHEREAS, various Telecommunications Service Providers have requested the right to
occupy the Public Rights-of-Way of the City for the purpose of installing, maintaining and
operating Telecommunications Systems or Facilities; and
WHEREAS, it is the City's intent to treat each Telecommunications Service Provider on
a competitively neutral and nondiscriminatory basis in granting access for use of the City's
Public Rights-of-Way; and
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WHEREAS, the Public Rights-of-Way subject to the jurisdiction and control of the City
(I) are critical to the travel of persons and the transport of goods and other tangibles in the
business and social life of the community by all citizens; (2) are a unique and physically limited
resource and proper management by the City is necessary to maximize efficiency, minimize the
costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative
effects upon the public from such facilities' construction, placement, relocation, and maintenance
in the Public Rights-of-Way; and (3) are intended for public uses and must be managed and
controlled consistently with that intent; and
WHEREAS, the City Commission of the City of Ocoee desires it is the intent of the
City to exercise its authority to impose fees and adopt reasonable rules and regulations to the
fullest extent allowed by Federal and State law.
NOW, THEREFORE BE IT ENACTED BY THE CITY COMMISSION OF THE
CITY OF OCOEE, FLORIDA,AS FOLLOWS:
SECTION 1. Authority. The City Commission of the City of Ocoee has the authority to
adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida
and Chapter 166, Florida Statutes.
A new Chapter 162 of the Code of Ordinances of the City of Ocoee, Florida is hereby
adopted as follows:
SECTION 2. A new Chapter 162 of the Code of Ordinances of the City of Ocoee, Florida
is hereby adopted as follows:
Section 162-1. Title.
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This Chanter shall he known and be cited as the City of Ocoee's
Telecommunications Chapter. This Ordinan'" shall be known and may be cited as the City of
Demo' Teie,.,�.....unicnt:onn Ordin
Section 162-2. Intent and Purpose.
It is the intent of the City of Ocoee to promote the public health, safety, and general
welfare by providing for the use of the Public Rights-of-Way within the City. to adopt and
administer reasonable regulations consistent with State and Federal Law, including Sections
337.401, 362.01, and 337.29(3) Florida Statutes, and the City's home-rule authority in
accordance with the provisions of the Telecommunications Act of 1996, to provide for the
payment of compensation and other consideration by a Telecommunications Service Provider to
the City for the cost of regulating and maintaining the Public Rights-of-Way and for the privilege
of using the Public Rights-of-Way within the City for constructing and maintaining
Telecommunications Facilities, and to establish the reasonable regulations concerning the use of
the Public Rights-of-Way by all 'telecommunications Service Providers after the effective date of
this Ordinance. In regulating its Public Rights-of-Way. the City shall be governed by and shall
comply with all applicable Federal, State and local laws and regulations.
Section 162-3. Definitions.
For the purpose of this Ordinance, the following terms, phrases, words and derivations
shall have the meanings given herein. When not inconsistent with the context, words used in the
present tense include the future tense, words in the plural number include the singular number,
and words in the singular number include the plural number. The words "shall" and "will" are
mandatory, and "may" is permissive. Words not otherwise defined herein or in any permit that
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might be granted hereunder shall be given the meaning set forth in the Communications Act of
1934, 47 U.S.C. § 151 et seq., as amended (collectively the "Communications Act"), and, if not
defined therein, as defined by Florida Statute; and, if not defined therein, be construed to mean
the common and ordinary meaning.
A. "City" means the City of Ocoee. an incorporated municipality of the State of
Florida, in its present form or in any later reorganized, consolidated, or enlarged form.
B. "Registrant" or"Facility Owner" shall mean a Telecommunications Company or
other person which seeks to use or occupy the Public Rights-of-Way that has Registered with the
City in accordance with the provisions of this Ordinance.
C. "Registration" and "Register" shall mean the process described in Section 4
whereby a Telecommunications Service Provider provides certain information to the City.
D. "Gross Receipts" shall mean all cash, credits or property of any kind or nature,
with deductions for bad debt expense, reported as revenue items to the Registrant's audited
income statements arising from, or attributable to Recurring Local Service Revenues of
Registrant within the City. The City reserves the right to amend the definition contained herein
as permitted by applicable Law. The definition herein shall not be applicable as of October 1,
2001; or such other date as provided by law, provided that Section 337.401, Florida Statutes is
amended effective October I, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.
E. "Law" means any local, State or Federal legislative,judicial or administrative
order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff,
guideline or other requirements, as amended, now in effect or subsequently enacted or issued
inclding, but not limited to, the Communications Act of 1934, 47 U.S.C. § 151 et seq. as
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amended by the Telecommunications Act of 1996, Pub L. No. 104-104 § l01(a), 110 Stat. 70,
and all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications
Commission or the governing State authority pursuant thereto.
F. "Person" means any individual, corporation, partnership, association, joint
venture, estate, trust, syndicate, fiduciary, organization or legal entity of any kind, and any lawful
trustee, successor, assignee, transferee or personal representative thereof, and all other groups or
combinations and shall include the City to the extent the City obtains or holds a certificate
under Chapter 364, Florida Statutes.
G. "PSC" means the Florida Public Service Commission.
H. "Public Rights-of-Way" means the surface, the airspace above the surface and
the area below the surface of any public street, alley, viaduct, elevated roadway, bridge, public
easement, or any other public way for which the City is the authority that has jurisdiction and
control and may lawfully grant access to such property pursuant to applicable law. "Public
Rights-of-Way" shall not include any real or personal City property except as described above
and shall not include City buildings, fixtures, or other structures or improvements, regardless of
whether they are situated in the Public Rights-of-Way.
1. "Recurring Local Service Revenues" means revenues from the monthly
recurring charges for local service, including but not limited to (1) recurring basic area revenues
derived from the provision of flat-rated basic area services; (2) recurring optional extended area
revenues derived from the provision of optional extended area services; (3) local private line
revenues derived from local services which provide communication between specific locations,
either through dedicated circuits, private switching arrangements, predefined transmission paths,
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whether virtual or physical, or any other method of providing such services; (4) revenues from
the sale of local services for resale; and (5) other local service revenues from the provision of
secondary features that are integrated with the telecommunications network, including, without
limitation, services such as call forwarding, call waiting, and touchtone line service. Except as
provided herein, revenues from all recurring local services provided by a Registrant over a
Telecommunications Facility or System in the Public Rights-of-Way shall constitute Recurring
Local Service Revenues subject to this Ordinance. Recurring local Service Revenues do not
include revenues from (1) toll charges for the transmission of voice, data, video, or other
information; (2) access charges paid by carriers for origination and/or termination of toll
telephone service as defined in Section 203.012(7), Florida Statutes, or other charges required by
the Federal Communications Commission which arc directly passed through to end users: (3)
interstate service; (4) ancillary services such as directory advertising, directory assistance,
detailed billing services, inside wire maintenance plans, bad check charges, and non-recurring
charges for installation, move, changes or termination services; (5) cellular mobile telephone or
telecommunications services; or specialized mobile telephone or telecommunications service; or
specialized mobile radio, or pagers or paging service, or related ancillary services; (6) public
telephone charges collected on site; (7) teletypewriter or computer exchange services as defined
in Section 203.012(6), Florida Statutes; or (8) local message rated (message, unit or time basis)
and minutes of use charges in excess of the minimum flat-rated charges for similar services.
This definition shall not be applicable as of October 1, 2001, or such other date as provided by
law, provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set
forth in Chapter 00-260, Laws of Florida, 2000.
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J. "Telecommunications Company" has the meaning set forth in Section
364.02(12), Florida Statutes, as amended. the term "Telecommunications Company" does not
include an open video system, cable service provider or wireless service provider.
K. "Telecommunications Service" shall include, without limitation, the
transmission, conveyance or routing of voice, data, audio, video, or any other information or
signals to a point, or between or among points, by and through electronic, radio, satellite, cable
optical, microwave, or other medium or method now in existence or hereafter devised, regardless
of the protocal used for such transmission or conveyance. "Telecommunications Service", as
contemplated herein, does not include the provision of service via an open video system, cable
provider or wireless provider which shall require separate authorizations from the City. As of
October 1, 2001, the term "Communications" shall be substituted for "Telecommunications",
provided that Section 337.401, Florida Statutes is amended effective October 1, 2001, as set forth
in Chapter 00-260, Laws of Florida, 2000.
L. "Telecommunications Service Provider" shall refer to any person making
available or providing Telecommunications Services, as defined herein, through the use of a
Telecommunications Facility in the Public Rights-of-Way. As of October 1, 2001, the term
"Communications" shall be substituted for "Telecommunications", provided that Section
337.401, Florida Statutes is amended effective October 1, 2001, as set forth in Chapter 00-260,
Laws of Florida, 2000.
M. "Telecommunications Facilities", "Facilities" or "Systems" means any facility,
equipment or property, including, but not limited to, cables, conduits, converters, splice boxes,
cabinets, handholes, manholes, vaults, equipment, drains, surface location markers,
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appurtenances, located, to be located, used, or intended to he used, in the Public Rights-of-Way
of the City to transmit, convey, route, receive, distribute, provide or offer Telecommunications
Services. As of October 1, 2001, the term "Communications" shall be substituted for
"Telecommunications", provided that Section 337.401, Florida Statutes is amended effective
October 1, 2001, as set forth in Chapter 00-260, Laws of Florida, 2000.
Section 162-4. Registration.
A. Any person, entity or Telecommunications Service Provider that desires to place,
erect, construct, install, locate, maintain, repair, extend, expand. remove, or relocate any
Telecommunications Facilities in, under, over or across any Public Right-of-Way in the City
shall be considered to be using or occupying the rights-of-way and shall be required to Register
with the City in accordance with the terms of this Ordinance.
13. Any person, entity or Telecommunications Service Provider desiring to use the
Public Right-of-Way shall file a Registration with the City which shall include, as applicable, the
following information:
I. identity of the applicant and name, address and telephone number of applicant's
primary contact person in connection with the Registration;
2. a statement of whether the applicant presently serves any
telecommunications services customers at retail within the jurisdictional limits of the City
at the time of registration or whether the applicant simply intends to lease its facilities to
other telecommunication service providers who will be providing direct service to retail
customers within the jurisdictional limits of the City. This information will allow the City
to follow up, with the Registrant, at the time the Registrant begins to make physical use of
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the Public Rights-of-Way, and allow the City to determine whether a liner mile charge is
applicable in accordance with Section 162-5(B) of this Ordinance; a--„atemen of whetof nether
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3. evidence of the insurance coverage required under this Ordinance and
acknowledgment that Registrant has received and reviewed a copy of this Ordinance;
4. a copy of any applicable Federal and/or State Certification authorizing the
applicant to provide Telecommunications Services.
5. a Security fund in accordance with this Ordinance.
C. The City will review the information submitted by the applicant. Such review
will be by the City Manager or his or her designee. If the applicant submits information in
accordance with Section B above, the Registration shall be effective and the City shall notify the
applicant of the effectiveness of Registration in writing. If the City determines that the
information has not been submitted in accordance with Section 162-4.B. above, the City shall
notify the applicant of the non-effectiveness of Registration, and reasons for the non-
effectiveness, in writing. The City shall so reply to an applicant within forty-five(45) days after
receipt of registration information from the applicant. Upon notification of the non-effectiveness
of the Registration, nothing herein shall preclude the applicant from filing a subsequent
application addressing the basis for the non-effectiveness. If the applicant disputes the
determination of non-effectiveness for the particular application submitted, the applicant may file
an appeal under Section 162-8(P) of this Ordinance. Failure to comply with the appeals section
for the particular application found to be non-effective shall be sufficient grounds for the City to
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reject that particular application in the future. A Registrant may cancel a Registration upon
written notice to the City noticing that it will no longer maintain Facilities in the Public Rights-
of-Way and will no longer need to pull permits to perform work in Public Right-of-Way. Within
30 days of any change in the information required to be submitted pursuant to Section 162-4,
Registrant shall provide updated information to the City.
D. A Registration shall not convey title, equitable or legal, in the Public Right-of-
Way. Registrants may only occupy Public Rights-of-Way for Telecommunications Facilities.
Registration does not excuse a Telecommunications Provider from obtaining appropriate access
or pole attachment before locating its Facilities on another Person's facilities. Registration does
not excuse a Provider from complying with all applicable City ordinances, including this
Ordinance.
E. Each application for Registration or transfer shall be accompanied by a non-
refundable application fcc in the amount of Eight Hundred ($800.00) Dollars. The fee amount
shall approximate the City's costs and expenses incurred in connection with approving the
Registration or transfer. If the application fee is insufficient to cover all costs or expenses
incurred by the City in connection with approval of the Registration or transfer the applicant
shall reimburse the City for any such costs and expenses in excess of the application fcc. Fee
amounts may be amended from time to time, by Resolution of the City Commission, for the
purpose of complying with this provision.
F. Registration with the City shall be nonexclusive. Registration does not establish
any priority for the use of the Public Right-of-Way by a Registrant or any other Registrants.
Registrations are expressly subject to any future amendment to or replacement of this Ordinance
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and further subject to any additional City Ordinances, as well as any state or federal laws that
may be enacted during the term of the Registration.
Section 162-5. Fees and Payments.
A. In consideration for the rights, privileges and permission granted hereunder, a
Registrant hereunder shall pay to the City annually a sum equal to one percent (1%) of Gross
Receipts of the Registrant on Recurring Local Service Revenues for services provided within the
corporate limits of the City. Included within such one percent (1%) maximum fee or
consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to Florida
Statute 337.401(5), and other impositions except ad valorem taxes and amounts for assessments
for special benefits, such as sidewalks, street pavings, and similar improvements, and
occupational license taxes levied or imposed by the City upon a Registrant. In the event that
applicable law currently permits or is amended to permit the City to collect a fee higher than one
percent (1%), or permits the City to calculate the fee on revenues not specified herein, the
Registrant shall pay following written notice from the City, its fee payments to the City to that
higher amount on the effective date of such law. In the event applicable law is amended to
require the City to collect a fee lower than the current statutory limit, the City shall take all
necessary steps to conform the requirements hereof to applicable law. All of the aforestated
payments shall be made to the City quarterly, with such payments made within twenty (20) days
following the end of each calendar quarter. Payments received after the due date stated herein
shall be subject to interest in accordance with the interest rate identified in Section 55.03, Florida
Statutes, or its successors.
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B. A Registrant, that makes physical use of the Public Rights-of-Way and who is not
providing Telecommunications Services as defined in Section 203.012(3), Florida Statutes
within the jurisdictional limits of the City at the time the Registrant begins to make physical use
of the Public Right-of-Way, as a condition Ibr occupying or using the Public Rights-of-Way shall
pay to the City annually no less than Five Hundred Dollars ($500) per linear mile of any cable,
fiber optic, or other pathway that makes physical use of the Public Rights-of-Way. The City may
adopt additional fees or other consideration, provided that any fee or other consideration
imposed by the City in excess of Five Hundred Dollars ($500) per linear mile shall he applied in
a nondiscriminatory manner and shall not exceed the sum of:
(1) Costs directly related to the inconvenience or impairment solely caused by
the disturbance of the Public Rights-of-Way;
(2) The reasonable cost of the regulatory activity of the City: and
(3) The proportionate share of cost of land for such street, alley or other public
way attributable to utilization of the Public Rights-of-Way by a Telecommunications Service
Provider.
The fee or other consideration imposed pursuant to this subsection shall not apply in any
manner to any Telecommunications Company which provides Telecommunications Services as
defined in Section 203.012(3), Florida Statutes for any services provided by such
Telecommunications Company.
C. Notwithstanding anything herein to the contrary, the City shall at all times hereby
require the maximum compensation allowed under applicable law.
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D. Except to the extent prohibited by applicable law: (1) the fee payments to be made
pursuant to this Section shall not be deemed to be in the nature of a tax; (2) such fee payments
shall be in addition to any and all taxes of a general applicability: (3) a Registrant shall not have
or make any claim for any deduction or other credit of all or any part of the amount of said fee
payments from or against any of said City taxes or other fees or charges of general applicability
which Registrant is required to pay to the City, except as required by Law; and (4) the fee
specified herein is the consideration for use of the Public Rights-of-Way. including all public
easements, for the purpose of installing and maintaining a Telecommunications Facility.
E. The payments required under Subsection 162-5(A) shall not apply as of
October 1, 2001. Additionally, after October 1, 2001, subsection 162-5(B) shall continue to
apply to any person or entity that does not directly serve a communications services
customer at retail within the jurisdictional limits of the City. The payments required under
001 or such . ther date au provided b law.
t,r„tided that Section 1137.101, Florida Statutes is amended eft:,
in Chapter 00 360, Laws of Florida, 2000.
Section 162-6. Reports and Records.
A. The City may, at its option, upon sixty (60) days notice to the Registrant, but in
no event more often than once per year, examine the records and accounting files, and such other
books and records, if such records relate to the calculation of fee payments. The examination of
such books, accounts, records or other materials necessary for determination of compliance with
the terms, provisions, and requirements of this Ordinance shall be during regular hours of
business of the Registrant at an office of the Registrant located within the County, or at another
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location satisfactory to the City. In the event that the City, pursuant to an audit, determines that
there exists a discrepancy in the amount paid and the amount owed to the City by the Registrant
in excess of two percent (2%), Registrant shall pay all reasonable costs, fees and expenses of the
audit. This paragraph shall not apply for periods after October I, 2001, or such other date as
provided by law, provided that Section 337.401, Florida Statutes is amended effective October I,
2001, as set forth in Chapter 00-260, Laws of Florida, 2000.
U. Upon reasonable request, a Registrant shall provide the following documents to
the City as received or filed:
(I) Any pleadings, petitions, notices, and documents, regarding any
legal proceeding involving any provisions of this Ordinance which arc reasonably necessary for
the City to protect its interests under this Ordinance.
(2) Any request for protection under bankruptcy laws, or any judgment
related to a declaration of bankruptcy.
(3) Nothing in this section shall affect the remedies the Registrant has
available under applicable law.
C. In addition, the City may, at its option, and upon reasonable notice to the
Registrant, inspect the Facilities in the Public Rights-of-Way to ensure the safety of its residents.
D. the City shall keep any documentation, books and records of the Registrant
confidential to the extent required under Florida Statutes.
Section 162-7. Underground Installation; Relocation.
A. A Registrant shall install its Facilities underground, to the extent that this
obligation is not expressly prohibited by applicable PSC rules and regulations. -T-o--the
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B. Every Registrant which places or constructs Telecommunications Facilities
underground shall maintain appropriate participation in the regional notification center for
subsurface installations.
C. Any Telecommunications Facilities heretofore or hereafter placed upon, under,
over, or along any Public Rights-of-Way that is found by the City to be unreasonably interfering
in any way with the convenient, safe or continuous use or the maintenance, improvement,
extension or expansion of such Public Rights-of-Way shall, upon written notice to the Registrant
or its agent, be removed or relocated, within thirty (30) days of such notice, by such Registrant at
its own expense in accordance Section 337.403, Florida Statutes. The City Manager may extend
the time within which a Registrant shall remove or relocate a Telecommunications Facility, for
good cause shown. D. The Registrant shall not in any way displace, damage. or destroy
any facilities, including, but not limited to, gas. sewer, water main, pipe cable, conduit, fiber
optic, or other pathway or any other facilities belonging to the City. The Registrant shall be
liable to the City for the costs of any repairs made necessary by any such displacement. damage
or destruction, of facilities belonging to the City, and the Registrant shall pay such costs upon
demand. In the case of an emergency, the City may commence repairs without any prior notice
to the Registrant. The term emergency shall mean a condition that may affect the public's health,
safety or welfare. In the event of an emergency the City may cause the repairs to he made at the
Facility's owner expense, utilizing City employees, agents or contractors, charge any and all
costs, and require reimbursement within fourteen (14) calendar days after the submission of the
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bill by the City to the Registrant. After thirty (30) days, the City may obtain reimbursement
from the security fund. In all other non-emergency circumstances, the Registrant shall he given
prior written notice. If such repairs are not performed in a reasonable and satisfactory manner
within the fourteen (14) calendar days after receiving notice, the City may, cause the repairs to
he made at the Facility's owner expense, utilizing City employees, agents or contractors, charge
any and all costs, and require reimbursement within thirty (30) days after the submission of the
bill by the City to the Registrant. Again, after thirty (30) days, the City may obtain
reimbursement from the security fund.
E. Subject to Section 337.403, Florida Statutes, whenever an order of the City
requires such removal or change in the location of any Telecommunications Facility from the
Public Rights-of-Way, and the Facility owner fails to remove or change the same at its own
expense to conform to the directive within the time stated in the notice, the City may proceed to
cause the Telecommunications Facility to be removed. The expense thereby incurred except as
provided in Section 337.403(1)(a)-(c), shall be paid out of any money available therefor, and
such expense shall be charged against the owner of the Telecommunications Facility and levied,
collected and paid to the City.
F. Subject to Section 337.404, Florida Statutes, whenever it shall be necessary for
the City to remove or relocate any Telecommunications Facility, the owner of the
Telecommunications Facility, or the owner's chief agent, shall he given written notice of such
removal or relocation and requiring the payment of the costs thereof and shall he given
reasonable time, which shall not be less than twenty (20) nor more than thirty (30) days in which
to file an appeal with the City Commission to contest the reasonableness of the order. Upon
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receipt of a written appeal, the City Commission shall place the matter on the Commission's
agenda for consideration within forty-five (45) working days. Should the owner or the owner's
representative not appear the determination of the cost to the owner shall be final, in accordance
with Section 337.404, Florida Statutes.
G. A final order of the City imposed pursuant to Florida Statutes, and applicable
provisions of the City Code, if any, shall constitute a lien on any property of the owner and may
be enforced as provided therein.
I I. If the City Manager declares an emergency and requests the removal or abatement
of facilities, by written notice, a Registrant shall remove or abate the Registrant's facilities by the
deadline provided by the City Manager. A Registrant and the City shall cooperate to the extent
possible to assure continuity of service. If a Registrant, after notice, fails or refuses to act, the
City may remove or abate the facility, at the sole cost and expense of the Registrant, without
paying compensation to the Registrant and without the City incurring liability for damages.
I. Upon abandonment of a Facility within the Public Rights-of-Way of the City, the
owner of the Facility shall notify the City within ninety (90) days. The Facility owner shall
remove all or any portion of the Facility, unless the City determines that such non-removal
Following receipt of suck notice, the City may direct the Facility owner to remove all or any
portion of the Facility if the City determines that suck removal- will be in the best interest of the
public health, safety and welfare. In the event that the City does not direct the removal of the
abandoned Facility by the owner of the Facility, then such owner, by its notice of abandonment
to the City, shall be deemed to consent to the alteration or removal of all or any portion of the
Facility by another utility or person.
e:came;moo,oet,erFiaamran-rcIteumatlmaneeo525oi&e 19
.1. A Registrant shall, on the request of any Person holding a permit issued by
the City, temporarily raise or lower its Communications Facilities to permit the work
authorized by the permit. The expense of such temporary raising or lowering of Facilities
shall be paid by the Person requesting same, and the Registrant shall have the authority to
require such payment in advance. The Registrant shall be given not less than thirty (30)
days advance notice to arrange for such temporary relocation.
Section 162-8. Use of Rights-of-Way.
A. A Facility owner agrees at all times to comply with and abide by all applicable
provisions of the State statutes and local laws including, but not limited to, applicable zoning
regulations not inconsistent with State and Federal laws.
B. Except in the case of an emergency, no Telecommunications Service Provider
shall construct any Facility on, over, above, along, upon, under, across, or within any Public
Right-of-Way which disrupts the Public Rights-of-Way without first filing an application with
and obtaining a permit from the City therefor, pursuant to applicable permitting requirements of
the City, and other applicable City Code requirements, except as otherwise provided in this
Ordinance. The term emergency shall mean a condition that affects the public's health. safety or
welfare, which includes unplanned out of service condition of a pre-existing service. Registrant
shall still be required to provide prior notice to the City in the event of an emergency. For the
purposes of the notice requirements herein, the City shall provide the Registrant with a City
contact. The City may waive the permit requirement in non-emergency cases where there will be
no disruption of the Public Rights-of-Way. When work is performed on an emergency basis, the
Registrant must still apply for a permit by the following business day in accordance with Public
ox..niea000.ueiw.Fimdomti-Tleconrommance-052501 eoc 20
Works Department permitting guidelines. In all instances, the Registrant shall restore all dam-
aged property and indemnify the City from any and all damages caused by the Registrant's
emergency work. The City may waive the permit requirement in cases where there will be no
disruption of the Public Rights-of-Way.
C. As part of any permit application, with respect to new or existing facilities, where
applicable, in the Public Rights-of-Way, the Registrant shall furnish to the Director of Public
Works and the City Manager a proposal for construction of the Telecommunications Facility that
sets forth at least the following:
(I) An engineering plan signed and scaled by a Florida Registered
Professional Engineer or prepared by a person who is exempt from such registration
requirements as provided in Section 471.003, Florida Statutes, identifying the location of the
proposed Facility, including a description of the Facilities to be installed, where it is to be
located, and the approximate size of Facilities and equipment that will be located in, on, over, or
above the Public Rights-Of-Way.
(2) Maps showing the routing of new construction that involves an
alteration to the surface or subsurface of the Public Right-of-Way. A Registrant may not
begin construction until the plans and drawings have been approved in writing by the
Director of Public Works and a permit is issued.
(3) A description of the manner in which the Facility will he installed (i.e.
anticipated construction methods and/or techniques).
(4) The time required to place the Facility.
G'Cabld300%OcnccNinolUrell-TelecomOrdinancM5250doe 2
(5) A maintenance of traffic plan for any disruption of the Public Rights-of-
Way.
(6) Information on the ability of the Public Rights-of-Way to accommodate
the proposed Facility, if available (such information shall be provided without certification as to
correctness, to the extent obtained from other users of the Public Rights-of-Way).
(7) If appropriate, given the Facility proposed, an estimate of the cost of
restoration to the Public Rights-of-Way.
(8) And, such plan shall include the timetable for construction for each phase
of the project, and the areas of the City which will be affected.
(9) The City may request such additional information as it finds reasonably
necessary to review an application for a permit to perform work in the Public Rights-of-Way.
D. The City shall have the power to prohibit or limit the placement of new or
additional facilities within the Public Rights-of-Way, if there is insufficient space to
accommodate all of the requests to occupy or use the rights-of-way, for the protection of existing
facilities in the Public Rights-of-Way, or for City plans for public improvements or development
projects which have been determined by the City to be in the public interest.
1. In case of conflict or interference between the facilities of different
Registrants, the Registrant whose facilities were first permitted shall have priority over a
competing Registrants use of the public rights-of-way. The resolution of any conflict or
interference shall he made in a manner which is consistent with the non-discrimination
provisions of the Federal Telecommunications Act of 1996.
a:.ai,iazoomo,o,irnmauh„n-mcwrlunwi,.T,w052501 dot. 22
2. There may be from time to time within the City various easements
and streets which the City does not have the unqualified right to authorize Registrant to
use; therefore, the City does not warrant or represent as to any particular easement, rights-
of-way, or portion of a right-of-way or easement, that it has the right to authorize the
Registrant to install or maintain portions of its facilities therein, and in each case the
burden and responsibility for making such determination in advance of the installation
shall be upon the Registrant. The City shall not be required to assume any responsibility
for the securing of any rights-of-way, easements or other rights which may be required by
the Registrant for the installations of its facilities, nor shall the City be responsible for
securing any permits or agreements with other persons or utilities.
3. Nothing in this Ordinance shall affect the City's authority to add
vacate, or abandon Public Rights-of-Way, and the City makes no warranties or
representations regarding the availability of any added, vacated or abandoned Public
Rights-of-Way for Communications Facilities.
4. Upon request of the City, a Registrant may be required to coordinate
the placement or maintenance of facilities under a permit with any other work
construction, installation or repairs that may be occurring or scheduled to occur within a
reasonable time frame in the subject Public Rights-of-Way, and Registrant may be
required to reasonably alter its placement or maintenance schedule as necessary so as to
minimize disruptions and disturbance in the Public Rights-of-Way.
F. All Facilities shall be installed, located and maintained so as not to unreasonably
interfere with the use of the Public Rights-of-Way by the public and to cause unreasonable
c_<aei&rzoono«ce.rnalDran-rdaori3Ormiance-0525111 doo 23
interference with the rights and convenience of property owners who adjoin any of the Public
Rights-of-Way. The Registrant shall be liable for costs and expenses for the displacement,
damage or destruction of any irrigation system or landscaping within the Public Rights-of-Way.
The Registrant shall make such repairs upon request of the affected property owner. In the event
the Registrant fails to make the appropriate repairs, to restore such property to as good a
condition as existed prior to commencement of work, the affected property owner may file a
complaint with the City Manager or a designee. In this instance, the Registrant shall he given
prior written notice of the necessary repairs by the City Manager or his designee. If such repairs
are not performed in a reasonable and satisfactory manner within the thirty (30) calendar days
after receiving notice, the City may cause the repairs to be made at the Facility's owner expense,
utilizing City employees, agents or contractors, charge any and all costs, and require
reimbursement within thirty (30) days after the submission of the bill by the City to the
Registrant. After thirty (30) days, the City may obtain reimbursement from the security fund.
The "prior written notice" described in this paragraph shall be considered a final written decision
for purposes of the appellate rights outlined in Subsection 162-8(P) of this Section.
F. The use of trenchless technology (i.e., directional bore method) for the installation
of Facilities in the Public Rights-of-Way as well as joint trenching and/or the co-location of
facilities in existing conduit is strongly encouraged, and should be employed wherever possible.
The City Manager or his or her designee may waive the requirement of trenchless
technology if the City Manager determines that field conditions warrant the waiver.
G. The City Manager may issue such additional rules and regulations concerning the
placement or maintenance of a Telecommunications Facility in the Public Rights-of-Way, as
c:Cable'2D00`9coecTimloeafFTelecomONinmmo05'_50 I floc 24
may be consistent with applicable Law and not inconsistent with this Ordinance.
H. All safety practices required by applicable Law or accepted industry practices and
standards shall be used during construction, maintenance, and repair of the Telecommunications
Facilities. Registrant's work,while in progress, shall be properly protected at all times with
suitable barricades, flags, lights, flares or other devices as are required by the Manual on
Uniform Traffic Control Devices (FDOT) and/or any requirements of the Public Works
Department to protect all members of the public having occasion to use the portion of the
streets involved or adjacent property.
I. In the event that at any time during the term of the rights granted herein the City
shall lawfully elect to alter, or change the grade of, any Public Rights-of-Way, upon reasonable
notice by the City, the Registrant shall make any necessary removals, relaying and relocations of
its Telecommunications Facilities at its own expense, in accordance with applicable Law. The
City reserves the right to place and maintain, and permit to be placed or maintained
sewer, gas, water, electric, storm drainage, communications or other types of facilities
cables or conduits, and to do, and to permit to be done, any underground and overhead
installation or improvement that may he deemed necessary or proper by the City in the
Public Rights-of-Way occupied by the Registrant.
J. A Registrant shall obtain any and all required permits and pay any and all required
lees before commencing any construction on or otherwise disturbing any Public Rights-of-Way
as a result of its construction.
The Registrant shall, at its own expense, restore such property to as good a
condition as existed prior to commencement of work. The Facility owner shall, at its own
e;Aezme%20GOanee`Flna]Dia!-Ttlauo,ONloance-Os250 I Joc 25
expense, restore such property to as good a condition as existed prior to commencement of work.
A Registrant shall guarantee its restoration for a period of twelve (12) months after the
completion of such restoration. If such restoration is not performed in a reasonable and
satisfactory manner within thirty (30) calendar days after the completion of construction, the City
may, after prior written notice to Registrant, cause the repairs to be made at the Facility's owner
expense, utilizing City employees, agents or contractors, charge any and all costs, and require
reimbursement within thirty (30) days after the submission of the bill by the City to the
Registrant.
2. A permit from the City constitutes authorization to undertake only certain
activities on Public Rights-of-Way in accordance with this Ordinance, and does not create a
property right or grant authority to impinge upon the rights of others who may have an interest in
the Public Rights-of-Way.
K. All ongoing installation, construction and maintenance of a Telecommunications
Facility located in the Public Rights-of-Way shall be subject to the City's periodic inspection
upon no loss than three (3) days written notice to the F ea1vf .,.....,. for compliance with this
Ordinance, or any applicable provisions of the City Code.
h. The City makes no warranties or representations regarding the fitness, suitability
or availability of the City's Public Rights-of-Way for the Registrant's Communications Facilities
and any performance of work, costs incurred or services provided by Registrant shall be at
Registrant's sole risk.
M. The Registrant shall, at no cost to the City, produce and provide a complete
set of as-built plans including, but not limited to, horizontal and typical vertical profiles
n.cmioaoomocoamrinmrn-I cbwinOrdin,nco-op9p.doe 26
within (60) days after construction of any portion of the system to the City Manager. A
Registrant shall also cooperate with the City by providing in a timely and complete manner any
additional information requested under this subparagraph. Upon completion of any installation or
construction of new facilities in Public Right-of-Way and at no cost to the City, the Registrant shall
provide such additional information, as may be requested, showing the exact location of its
facilities and structures, including but not limited to, maps, geographical information systems,
plats, construction documents, drawings and any other information the City may find reasonably
necessary. Such plans shall be provided in digitized format showing the two-dimensional location
of the Facilities based on the City's Geographical Database datums, or other format acceptable to
the City Manager. All information required by this section shall be maintained in accordance
with the public record laws of the State of Florida.
N. Suspension or denial of Permits. Subject to Subsection P below, the City
Manager or a designee may suspend an existing permit or deny an application for a permit for
work in the Public Rights-of-Way for one or more of the following reasons:
(I) violation of permit conditions, including conditions set forth in this
Ordinance or other applicable provisions of the City Code or regulations governing use of Public
Rights-of-Way; or
(2) misrepresentation or fraud by Registrant in a Registration or permit
application to the City; or
(3) failure to relocate or remove facilities as may be lawfully required by the
City; or
c,4cob�o,2000‘0aoccrinalIm0-rclavomonroanco.052s0 l.doc 27
(4) failure of Registrant, its employees, agents or subcontractors, in
connection with the subject permit, to (a) place barricades or signs around the work area, (b) take
reasonable safety precautions to alert the public of work at the work site, or (c) repair, replace
and restore any sidewalk, street, alley, pavement, water, sewer or other utility line or
appurtenance, soil, landscaping, dirt or other improvement, property or structure of any nature.
In the event of such failure, the City may perform the work utilizing City employees, agents or
contractors, charge any and all costs, and require reimbursement within thirty (30) days after the
submission of the bill by the City to Registrant. Upon payment to the City for the violations that
gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.
O. Immediately after the suspension or denial of permit pursuant to this Section, the
City shall provide written notice of the violation, which notice shall contain a description of the
violation. A Final written decision(s) of the City Manager suspending a permit or denying an
application is subject to appeal. Upon correction of any violation that gave rise to a suspension
or denial of permit, the suspension or denial shall be lifted.
P. An appeal must be filed with the City within thirty (30) days of the date of the
final, written decision(s) to be appealed. Any appeal not timely filed shall be waived. The City
Commission shall hear the appeal no later than forty five (45) days from the end of the thirty (30)
day appeal period, unless waived by the Registrant. All decisions of the City Manager may he
appealed to the City Commission within thirty (30) days, by filing a written notice of appeal
with the City Clerk and providing copies to the City Manager and the City Attorney. Any
appeal not timely filed shall be waived. The notice of appeal shall state the decision which
is being appealed, the grounds for anneal, a brief summary of the relief which is sought.
ercaninionmow.ewmaiemn-I clecomOnimance-d>35111.doe 28
The City Commission may affirm, modify or reverse the decision of the City Manager. The
City Manager shall notify any party who has filed a written request for such notification of
the date when the matter will he presented to the City Commission. Nothing contained
herein shall preclude the City Commission from seeking additional information prior to
rendering a final decision. The decision of the City Commission shall he by resolution and a
copy of the decision shall be forwarded to the City Manager and the appealing party.
Within the time prescribed by the appropriate Florida Rules of Appeal late Procedure, a
party aggrieved by a decision of the City Commission may appeal an adverse decision to
the Circuit Court or applicable federal or district court. The party making the appeal shall
be required to pay to the City Clerk a fee to be established by administrative order of the
City Manager, to defray the costs of preparing the record on appeal. Said fee shall, he
effective upon approval by the Commission.
Q. In the event Registrant desires to use its existing facilities or to construct new
facilities for the purpose of providing to existing or potential consumers, cable services, or any
other services other than the provision of telecommunications service, or for providing any other
use to existing or potential consumers, a Registrant shall seek such additional and separate
authorization from City for such activities as may required by applicable law.
R. To the extent that any Person or Registrant leases or otherwise uses the facilities of
an entity that is duly registered or otherwise authorized to place and maintain facilities in the
Public Rights-of-Way of the City, the Person or Registrant shall make no claim, nor assert any
right, which will impede the lawful exercise of the City's rights, including requiring the removal of
such facilities from the Public Rights-of-Way of the City, regardless of the effect on the Persons
u Cammeoon,ocoecrinaioinn-mc omO,dinance.US2501 doe 29
ability to provide service or on the Registrant's ability to maintain its own telecommunications
facilities in the Public Rights-of-Way of the City. any Person or Registrant leasing or otherwise
the City should be sent. In the event the City exercises its lawful authority to require the removal
otherwise using the facilities of a Registrant or other entity authorize.l-taj.Ia..
nights of a .. fr
relocation of such facilities. The failure of the City to provide notice, under this paragraph, shall
..nder the City',. acts. rthi. aph ' 1
Section 162-9.Termination of Registration.
The involuntary termination of a registration may only be accomplished by an action of
the City Commission. The City may declare the registration terminated and revoke and cancel
all privileges granted under that registration if(a) a federal or state authority suspends, denies, or
revokes a Registrant's certification to provide telecommunications service, (b) the Registrant is
adjudicated bankrupt by a United States District Court or through any legal proceeding of any
kind, or that a receiver is appointed to take possession of the assets of the Registrant, (c) the
Registrant abandons all of its facilities. Prior to such termination by the City resulting from a
violation of any of the provisions of this subparagraph, the Registrant shall be notified by the
City Manager with a written notice setting forth all matters pertinent to such violation, and
describing the action of the City with respect thereto. 'fhe Registrant shall have sixty (60) days
U•C'ablev2000aoee'I LealIrvll-I decomONinvmW152501 Joe 30
after receipt of such notice within which to cure the violation, or within which to present a plan,
satisfactory to the City Commission, to accomplish the same. In the event of an emergency, the
City may take appropriate action in accordance with Section 162-7(D) of this Ordinance. In the
event of a vote by the City Commission to terminate, the Registrant shall, within a reasonable
time following such termination, remove or abandon the facilities and take such steps as are
necessary to render every portion of the facilities remaining within the public right-of-way of the
City safe, lithe Registrant has either abandoned its facilities or chooses to abandon its facilities,
the City may either (I) require the Registrant's bonding company to remove some or all of the
facilities from the public right-of-way and restore the public right-of-way to its proper condition
or (2) the City may require that some or all of the facilities be removed and the public right-of-
way restored to its proper condition at the Registrant's expense, utilizing City employees, agents
or contractors, and charge any and all costs, and require reimbursement. The obligations of the
Registrant and the bonding company hereunder shall survive, for a period of twenty four (24)
months from, the termination of the registration. In the event of a termination of registration, this
provision does not permit the City to cause the removal of any facilities that are used to provide
another service for which the Registrant holds 'a valid certification with the applicable governing
federal and/or state telecommunications agencies and is properly registered with the City, for such
certificated service.
Section 162-10. Compliance with Other Laws; Police Power.
A Facility owner shall at all times be subject to and shall comply with all applicable
Federal, State and local Laws. A Facility owner shall at all times be subject to all lawful
exercises of the police power of the City, to the extent not inconsistent with applicable Laws.
csaeia¢oom000c,Fm,moon-raoco,00rdina,,odoszsotdo, 31
Section 162-I1. Transfer of Control; Sale or Assignment.
A. If the Registrant transfers or assigns its Registration incident to a sale or other
transfer of the Registrant's assets, the transferee or assignee shall be obligated to comply with the
terms of this Ordinance. Written notice of any transfer, sale or assignment shall be provided to
the City within twenty (20) days of the effective date of the transfer, sale or assignment. In order
for the transfer of Registration to be effective, the transferee or assignee must comply with the
registration requirements under Section 162-4 of this Ordinance.
B. Notwithstanding anything in this Ordinance, pledges in trust or mortgages or
other hypothecations of the assets of the Registrant to secure the construction, operation or repair
of its Telecommunications Facilities may be made to any person without notice to the City. Any
mortgage, pledge, lease or other encumbrance of the Telecommunications Facilities shall be
subject and subordinate to the rights of the City by virtue of this Ordinance or other applicable
law.
Section 162-12. Insurance; Indemnification.
A. A Facility owner shall at all times maintain the following liability insurance
coverage insuring the Registrant and naming the City, its officers, boards, Commission,
Commission members, agents and employees as an additional insured: worker's compensation
and employer liability insurance to meet all requirements of Florida law and commercial general
liability insurance with respect to the construction, operation and maintenance of the
Telecommunications Facilities, and the conduct of Registrant's business in the City, in the
minimum amounts of:
cuAIG2oomocowTinalDram-Ta«uadinamc.052 01 dm 32
(1) $250,000 for property damage in any one accident:
(2) $500,000 for personal bodily injury to any one person: and
(3) $1,000,000 for personal bodily injury in any one accident.
B. All insurance policies shall be with sureties qualified to do business in the State of
Florida; shall he with sureties with a minimum rating of A-I in Best's Key Rating Guide.
Property/Casualty Edition except as provided in (D) below. The City may require coverage and
amounts in excess of the above minimums where necessary to reflect changing liability exposure
and limits or where required by law. A registrant may provide a portion of the insurance
coverage required by Section 12(A) through excess or umbrella policies of insurance and where
such policies arc in a form acceptable to the City's Risk Manager.
C. A Registrant shall keep on file with the City certificates of insurance which
certificates shall indicate that the City, its officers, boards, Commission, Commission members,
agents and employees are listed as additional insureds. In the event of a potential claim such that
the City claims insurance coverage, the Facility owner shall immediately respond to all
reasonable requests by the City for information with respect to the scope of the insurance
coverage.
D. 'fhe certificates of insurance shall further provide that any cancellation or
reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof
has been given to the City. A Registrant shall not cancel any required insurance policy without
submission of proof that the Registrant has obtained alternative insurance satisfactory to the City
which complies with this Ordinance. A Registrant that elects to self-insure all or a portion of the
insurance coverage and limit requirements required by this Section is not required, to the extent
c,enb ln2000'Ococo final omfak corn Or,&nn cc-052501.doe 33
of such self-insurance, to comply with the requirement for the naming of additional insureds
under this Section. A Registrant that elects to self-insure shall provide to the City evidence
sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit
requirements required under this Section, such as evidence that the Registrant is a "private self
insurer" under the Workers Compensation Act. For purposes of this Section, "self-insure" shall
also include a Registrant which insures through a "captive insurer" as defined in Section 628.901,
Florida Statutes.
E. A Registrant shall, at its sole cost and expense, release, indemnify, hold harmless,
and defend the City, its officials, boards, members, agents, and employees, against any and all
claims, suits, causes of action, proceedings,judgments for damages or equitable relief, and costs
and expenses, sustained by the City, arising out of the construction, maintenance or operation of
its Telecommunications System or Facilities in the Public Rights-of-Way, regardless of whether
the act or omission complained of is authorized, allowed or prohibited by this Ordinance,
provided, however, that a Facility Owner's obligation hereunder shall not extend to any claims
caused by the negligence of the City. City agrees to notify the Registrant, in writing, within a
reasonable time of the City receiving notice, of any issue it determines may require
indemnification. Nothing in this Section shall prohibit the City from participating in the defense
of any litigation by its own counsel and at its own cost if in the City's reasonable belief there
exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in
this provision shall be construed or interpreted (I) as denying to either party any remedy or
defense available to such party under the laws of the State of Florida, and (2) as a waiver of
sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes.
e:;cw,ie,mooaw.pcer„,"iu„o-lelecumerdinar,ee-052501 due 34
Section 162-13. Construction Bond.
A. Except in the case of an emergency, as described in Section 162-8(B) of this
Ordinance, prior to performing any work in the Public Rights-of-Way, a Registrant shall
establish in the City's favor a construction bond in an amount specified in an engineering permit
or other authorization as necessary to ensure the Registrant's faithful performance of the
construction in the Public Rights-of-Way, in accordance with applicable sections of the City
Code. The amount of the construction bond shall be as set forth in the engineering permit, and
may be modified in the City Manager's reasonable discretion, based on the cost of the
restoration to take place in the Public Rights-Of-Way, and any previous history of the Registrant
concerning restoration within the Public Rights-of-Way of the City. The City, in its discretion,
may request a certified estimate of the cost of restoration by a Florida Registered Professional
Civil Engineer or certified by a Person who is exempt from such requirements as provided in
Section 471.003, Florida Statutes.
B. In the event a Registrant subject to such a construction bond fails to complete the
work in a safe, timely and competent manner in accordance with the provisions of the permit,
there shall be recoverable, jointly and severally from the principal and surety of the bond, any
damages or loss suffered by the City as a result, including the full amount of any compensation,
indemnification or cost of removal or abandonment of any property of the Registrant, or the cost
of completing the work, plus a reasonable allowance for attorneys' fees, up to the full amount of
the bond.
C. Twelve (12) months after completion of the construction and satisfaction of all
obligations in accordance with the bond,the City shall eliminate the bond. Notwithstanding, the
( xnmm2oua,am,oermn11Tn1cmlcwmOuennmNrroI.lint: 35
City may require a new bond for any subsequent work performed in the Public Right-of-Way.
D. The construction bond shall be issued by a surety having a minimum rating of A-I
in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the
City Attorney; and shall provide that:
"This bond may not be canceled, or allowed to lapse, until sixty
(60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew".
F. The rights reserved by the City with respect to any construction bond established
pursuant to this Section are in addition to all other rights and remedies the City may have under
this Ordinance, or at law or equity.
F. The rights reserved to the City under this Section are in addition to all other rights
of the City, whether reserved in this Ordinance, or authorized by other law, and no action,
proceeding or exercise of a right with respect to the construction bond will affect any other right
the City may have.
Section 162-14. Security Fund.
At the time of registration, the Registrant shall file with the City, for City approval, a cash
security, a bond, or irrevocable letter of credit, in the sum of Fifty Thousand Dollars
($50,000.00), in a form acceptable to the City Manager or a designee. For purposes of the bond
and irrevocable letter of credit, the Registrant must have as a surety a company qualified to do
business in the State of Florida. The cash security, bond, or irrevocable letter of credit, shall he to
secure the full and faithful performance by the Registrant of all requirements, duties and
obligations imposed upon Registrant by the provisions of this Ordinance, and to pay any taxes,
e'Cable'2oom9eo<o,rnalDeaft-TolowmOrdmancc-052501 doc 36
fees or liens owed to the City. The bond or irrevocable letter of credit shall be furnished
annually, or as frequently as necessary, and shall provide a continuing guarantee of the
Registrant's full and faithful performance at all times. Should the City draw upon the cash
security, bond, or irrevocable letter of credit, the City shall promptly notify the Registrant, and
the Registrant shall within thirty (30) calendar days restore the cash security, annual bond, or
irrevocable letter of credit, to full required amount. In the event a Registrant fails to perform its
duties and obligations imposed upon the Registrant by the provisions of this Ordinance, subject
to Section 162-15 below, there shall be recoverable,jointly and severally from the principal and
surety of the bond, any damages or loss suffered by the City as a result, including the full amount
of any compensation or indemnification, plus a reasonable allowance for attorneys' fees, up to
the full amount of the Fund. The cash security, bond or letter of credit may be waived by the
City where the City determines that the Security Fund is not necessary to secure the required
performance under this Ordinance. The City may from time to time increase the amount of the
security fund to reflect the increased risks to the City and to the public.
Section 162-15. Enforcement Remedies.
A. In addition to any other remedies available at law or equity or provided in this
Ordinance, the City may apply any one or combination of the following remedies in the event a
Registrant violates this Ordinance, or applicable local law or order related to use of the Public
Rights-of-Way. It shall be unlawful to violate any Provision of this section of the City Code.
Each day a violation of this section occurs constitutes a separate and distinct offense:
(1) Failure to comply with the provisions of this Ordinance or other law
applicable to users and/or occupants of the Public Rights-Of-Way, may result in imposition of
GJCc01c2000vococdFnvlUrnll-lticc,nnOrdinmiwOS2501.Jac 37
penalties to he paid by the Registrant to the City in an amount of not less than One Hundred
Dollars ($100.00) per day or part thereof that the violation continues.
(2) A Registrant's failure to obtain a permit before commencing work, except
in cases of an emergency, may result in imposition of penalties to he paid to the City in an
amount of not less than One Thousand Dollars ($1,000.00) per day or part thereof that the
violation continues.
(3) In addition to or instead of any other remedy, the City may seek legal or
equitable relief from any court of competent jurisdiction.
B. Before imposing a fine pursuant to this Section, the City shall give written notice
of the violation and its intention to assess such penalties, which notice shall contain a description
of the alleged violation.
Following receipt of such notice, the Registrant shall have thirty (30) days to either: (1) cure the
violation and the City shall make good faith reasonable efforts to assist in resolving the violation,
or (2) file an anneal in accordance with Section 162-8(P). If the violation is not cured within
that thirty (30) day period, the City may collect all fines owed, beginning with the first day of the
violation, either by removing such amount from the Security Fund or through any other
means allowed by law.
C. In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons hearing the impact of the
t'nmeQnfirMeum.Fln,mum-elewmoidLmnee-O52501 Joe 38
violation. the nature of the remedy required in order to prevent further violations, and such other
matters as the City determines are appropriate to the public interest.
D. Failure of the City to enforce any requirements of this Ordinance shall not
constitute a waiver of the City's right to enforce that violation or subsequent violations of the
same type or to seek appropriate enforcement remedies.
I3. In any proceeding before the City Commission wherein there exists an issue with
respect to a Registrant's performance of its obligations pursuant to this Ordinance, the Registrant
shall be given the opportunity to provide such information as it may have concerning its
compliance with the terms of the Ordinance. The City Commission may find a Registrant that
does not demonstrate compliance with the terms and conditions of this Ordinance in default and
apply any one or combination of the remedies otherwise authorized by this Ordinance.
F. The City Manager or his/her designee shall be responsible for administration and
enforcement of this Ordinance, and is authorized to give any notice required by Law.
G. Nothing in this Ordinance shall affect the remedies the Registrant has available
under applicable law.
Section 162-16. Force Majeure.
In the event a Registrant's performance of or compliance with any of the provisions of
this Ordinance is prevented by a cause or event not within the Facility owner's control, such
inability to perform or comply shall be deemed excused and no penalties or sanctions shall be
imposed as a result thereof, provided, however. that such owner uses all practicable means to
expeditiously cure or correct any such inability to perform or comply. For purposes of this
Ordinance, causes or events not within a Facility owners control shall include, without limitation,
C.Cable2000'.Ocoee.nnalaaftt-Telecnni01&nance-05250 I dnc 39
acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of
public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a
governmental agency or court. Causes or events within Registrant's control, and thus not falling
within this Section, shall include, without limitation, Registrant's financial inability to perform or
comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Registrant's
directors, officers, employees, contractors or agents.
Section 162-17. Reservation of Rights.
A. The City reserves the right to amend this Chapter Ordinance as it shall find
necessary in the lawful exercise of its police powers.
B. This Ordinance shall be applicable to all Telecommunications Facilities permitted
to be placed in the Public Rights-of-Way, on or after the effective date of this Ordinance, and
shall apply to all existing Telecommunications Facilities in the Public Rights-of-Way prior to the
effective date of this Ordinance, to the full extent permitted by State and Federal Law. Providers
with existing lines or and cables have one hundred and twenty (120) days from the effective date
of this Ordinance to comply with the terms of this Ordinance, or he in violation thereof.
C. The City reserves to itself the right to intervene in any suit, action or proceeding
involving any provision of this Ordinance. Registrant agrees to advise City of any such suits.
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion
of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining portion hereto.
e2cemm2000,0u,ecsmAmmn-I d«omOrdinonce-os2smdoe 40
SECTION 4. Codification. It is the intention of the City Commission of the City that the
provisions of this Ordinance shall become and be made a part of the Code of Ordinances of
the City; and that sections of this Ordinance may be renumbered or relettered and the
word "ordinance" may be changed to "chapter," "section," "article," or such other
appropriate word or phrase in order to accomplish such intentions; and regardless of
whether such inclusion in the Code is accomplished, sections of this Ordinance may be
renumbered or relettered and the correction of typographical errors which do not affect
the intent may be authorized by the City Manager,without need of public hearing, by filing
a corrected or recodified copy of same with the City Clerk.
SECTION 5. Effective Date. This Ordinance shall become effective immediately upon
passage and adoption.
PASSED AND ADOPTED this day of ,2001
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